A Man, a Plan . . .
When one branch of government declares war on another.
BY Charlotte Allen
August 3, 2009, Vol. 14, No. 43

FDR v. The Constitution

The Court-Packing Fight and
the Triumph of Democracy
by Burt Solomon
Walker, 352 pp., $27

On February 5, 1937, just 16 days after his inauguration to his second presidential term, Franklin D. Roosevelt called a surprise meeting of his cabinet in the White House's West Wing in which he unveiled to the cabinet, Congress, the press, and the nation a proposal for a dramatic reorganization of the federal judiciary that became known as his court-packing plan.

Although the legislative scheme that Roosevelt outlined--and expected Congress to enact--ostensibly sought to modernize the operations of all federal courts at all levels, its real target was the Supreme Court, which, during his first term, had systematically overturned huge portions of New Deal legislation on constitutional grounds. FDR's aim was to expand the court, to "pack" it with liberal-minded justices of his own choosing who would issue rulings more favorable to his legislative project.

Roosevelt had won the 1936 election by a crushing landslide--a total of 61 percent of the popular vote that enabled him to carry all but two of the 48 states--and his Democratic coalition of labor, northern liberals, and the Solid South had similarly steamrollered through Congress in 1936, leaving the wounded Republicans, who had reigned supreme in both houses during the prosperous 1920s, with a pathetic 17 senators (out of 96) and 88 House members (out of 435).

Not without reason, Roosevelt interpreted his sweeping victory as an overwhelmingly successful referendum on the New Deal, a massive expansion of federal supervisory power into economic arenas that had once been solely the province of states and localities, all in the name of combating the effects of the Depression on working people.

Only the Supreme Court--or at least a majority of its nine justices--consistently refused to go along with the New Deal's sudden (most of the laws had been passed by a compliant Congress during Roosevelt's famous "Hundred Days" in 1933) and massive intrusion of federal power into the setting of prices, wages, and maximum working hours in private economic transactions in ways skewed to benefit two key Roosevelt constituencies, farmers and laborers, typically at the expense of manufacturers, middlemen, retailers, entrepreneurs, and ultimately consumers.

In striking down such legislative pillars of the New Deal as the Agricultural Adjustment Act (AAA), a 1933 law that levied food processors in order to pay farmers to cut production (to the point of destroying crops and killing livestock), and the National Industrial Recovery Act (NRA), which authorized the regulation of prices, wages, working hours, and output in a daunting array of industries large and small, the Supreme Court invoked provisions of the Constitution that appeared to limit the power of Congress to enact such sweeping and unprecedented laws that essentially legalized cartels and price-fixing collusion.

The constitutional provision most frequently invoked in those rulings was the so-called Commerce Clause (Article 1.8.3 of the Constitution), then strictly interpreted by the conservatives (and even, from time to time, its liberals) to permit Congress to regulate the flow of goods in interstate transit but not to interfere with strictly local economies. For example, the Supreme Court had voted unanimously in 1935, in the case of Schechter Poultry v. U.S., to strike down the entire NRA on Commerce Clause grounds. The Schechter brothers, who operated a kosher chicken-slaughtering plant in Brooklyn, had argued that since they sold their fowl entirely inside the state of New York, they were not involved in interstate commerce and the federal government had no constitutional authority to micromanage wages and prices at a fine-grained level.

The Court also struck down state laws setting minimum prices and hourly wages during Roosevelt's first term. The constitutional ground on which those rulings rested was usually the 14th Amendment, which guarantees equal protection of the laws and forbids states to "deprive any person of life, liberty, or property without due process of law."

The Supreme Court, during the first third of the 20th century, tended to interpret the 14th Amendment in a broadly libertarian fashion known as "substantive due process" that protected the right to enter into contracts and other economic arrangements free of state interference. Thus, in 1936, the justices ruled that Joseph Tipaldo, owner of a laundry in Brooklyn (again!) was constitutionally entitled to defy a state minimum wage law and pay his laundresses whatever amount made business sense to him.

A slew of such death-dealing decisions, leading to public outcry and the disbanding of some of the alphabet-soup federal agencies set up to enforce the New Deal, infuriated Roosevelt. The court-packing scheme, concocted with the help of Attorney General Homer Cummings, was designed to neutralize the power of the Court's conservative bloc, four justices--Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler--who had been appointed years earlier by Presidents Taft, Wilson, and Harding. The four typically voted as a unit, together with whatever moderates they could persuade to their side.

Under FDR's court-packing bill, for every Supreme Court justice who had not retired by age 70-and-a-half, the president could appoint an additional, younger justice up to a maximum number of 6, swelling the size of the Court from 9 jurists to a potential 15. (As it happened, all Four Horsemen were over 70 in early 1937: Van Devanter, the eldest, was 77.)

The ostensible reasons for Roosevelt's proposal were to relieve the Supreme Court's crowded docket that resulted in its rejecting 87 percent of appeals for review, and also, as FDR repeatedly hinted to a press that he assiduously flattered, to counteract the deleterious effect of old age upon the judicial mind. Elderly justices were not only set in their ways, because they hailed from another era, but positively senile--"tenacious of the appearance of adequacy," as the president explained to much laughter at a press conference. The real reasons were obvious to everyone.

Roosevelt's bill should have been a shoo-in. He had a compliant Democratic Congress, including a formidable arm-twister, Senate majority leader Joseph Robinson of Arkansas, to whom he had all but promised the next Court seat that fell vacant. Roose-
velt also had enormous popularity on his side (a 65 percent approval rating at the start of his second term) as well as a progressive-minded press that ridiculed, in editorial cartoons and elsewhere, the Supreme Court's "nine old men" as bewhiskered pettifoggers who snoozed on the bench when not quibbling pointlessly. Roosevelt could also claim the support of the Constitution, which explicitly leaves it to Congress to set the number of justices, and the lawmakers had altered the size of the High Court eight times before fixing the number at nine during the presidency of Ulysses S. Grant.

Instead, as the spring of 1937 over-ripened into Washington's intolerable summer heat, and debate dragged on thanks to the efforts of recalcitrant senators whom Robinson could not cajole and Roosevelt could not cow, the bill's progress faltered, public support for it waned, and it died an ignominious death in July, when the Senate voted 70-20 to send it back to committee, whence it emerged as an innocuous judicial overhaul that left the number of justices intact. It had not helped that Robinson, who suffered from chronic heart trouble, had collapsed and died in his stifling Capitol Hill apartment the week before.

FDR v. The Constitution, meticulously researched and entertainingly narrated by Burt Solomon, a longtime Washingtonian himself and veteran writer for National Journal, explains how this debacle, Franklin Roosevelt's most humiliating defeat during all of his four terms in office, came about.

Solomon focuses on the tactical mistakes that Roosevelt made. Chief among them was his decision to spring the scheme on Congress as a secretly drafted fait accompli, which undoubtedly ruffled many feathers on Capitol Hill. The cocksure FDR also resisted all offers of compromise, such as enlarging the Court by two justices instead of six. Even worse, his cracks to the press about mental impairment among septuagenarian justices alienated his most reliably liberal ally on the Court, who had voted to uphold nearly all of his New Deal legislation: Louis Brandeis, who also happened to be, at age 80, the oldest of the nine. (The chief justice, Charles Evans Hughes, a Republican moderate who often voted with the liberals, was 74, and the others were in their sixties.)

Brandeis was incensed. A friend and protégé of Oliver Wendell Holmes, he considered himself to have the sharpest mind among his colleagues, including his two fellow liberals, Harlan Fiske Stone and Benjamin Cardozo. Brandeis, working through his wife Alice, who had social connections to Washington Democrats, launched a behind-the-scenes lobbying effort to derail Roosevelt's plan.

The real heroes of Solomon's book, however, are Sen. Burton K. Wheeler, an otherwise ultra-progressive Democrat from Montana who believed (as he told a radio audience) that reshaping the Supreme Court to make it "subservient" to the president's wishes was fundamentally undemocratic, and smacked of the despotism of Hitler and Stalin; and Owen Roberts, appointed to the Court by Herbert Hoover in 1930. Roberts, an unpretentious Republican from Pennsylvania who had won fame as the chief prosecutor in the Teapot Dome scandals, had mostly voted with the Four Horsemen in the New Deal and related cases.

For example, Roberts, along with Hughes, had joined the Horsemen in a 6-3 vote in 1936 in U.S. v. Butler to invalidate the AAA on the grounds that its tax on food processors to subsidize farmers violated the Constitution's Tenth Amendment, which limits the power of Congress to legislate in areas not specifically set forth elsewhere in the Constitution. Roberts had also joined the Horsemen to invalidate New York's minimum wage law in the Tipaldo case, another 5-4 ruling.

Nonetheless, in a decision announced on March 29, 1937, more than a month after Roosevelt announced his court-packing plan, Roberts suddenly moved to the other side, throwing his weight against the Horsemen to form a slim majority with the liberals and Hughes to uphold a Washington state minimum wage law in the case of West Coast Hotel Co. v. Parrish. Roberts wrote no opinion in Parrish, and he destroyed his personal papers before his death, so no one knows exactly why he changed his constitutional position. The press assumed that expediency was his main motive--warding off the planned expansion--and his Parrish vote became known as "the switch in time that saved nine."

In fact, Roberts appeared to have formulated his stance as early as December 1936, and in 1934 he had voted with Hughes and the liberals to uphold a New Deal-style price-fixing system for milk in Nebbia v. New York. Still, his apparent philosophical shift, coupled with the retirement of Van Devanter in May 1937, to be replaced by the staunch New Dealer Senator Hugo Black of Alabama, removed much of the sense of urgency from Roosevelt's crusade.

Meanwhile, across the street at the Capitol, Burton Wheeler cobbled together an alliance of Republicans, led by Idaho's William Borah, and conservative Democrats such as Maryland's Millard Tydings and Virginia's Carter Glass, to eviscerate Roosevelt's plan on the Senate floor. (A vengeful FDR tried to purge the Senate of his Democratic court-packing opponents in the 1938 elections, but his efforts failed dismally, and Republicans ended up gaining seats in both houses.)

In Solomon's view, the battle over Roosevelt's efforts to remold the Supreme Court was a crucial battle to preserve the Constitution--that is, to preserve the Constitution's tripartite structure of federal governance that enables the American system of checks and balances to work. Had FDR's political will prevailed, the Supreme Court would have been irretrievably politicized and weakened: "But by facing down a powerful president and defeating him," Solomon writes, "the Court not only preserved its independence but also underscored and reinforced it, in the public eye as well as its own."

The strongest feature of Solomon's study is his ability to make the constitutional wrangling come alive as a battle involving real, three-dimensional people--Franklin Roosevelt, Burton Wheeler, Owen Roberts--with vivid personalities whose contours he deftly delineates. He has a gift for you-were-there details: the sweltering Washington summer that drove residents from their oven-like homes after dark to sleep outdoors alongside the Potomac; the fact that at least three of the nine justices lived in rental apartments, unimaginable today; the sumptuous, old-fashioned White House food--roast pheasant, terrapin soup--with which FDR plied potential allies; the exuberant popular culture of the mid-1930s, featuring the likes of Fred Astaire, Jack Benny, Frank Capra, Busby Berkeley, and the first-magnitude lights of the All-Star Game of 1937. Even Seabiscuit makes a brief appearance here.

Where FDR v. The Constitution lists badly is in its failure to take any of the constitutional arguments seriously in the battles between Court liberals and conservatives over the meaning of the Commerce Clause, substantive due process, and the like. In Solomon's view, those battles were strictly ideological and sentimental: The three liberals were "compassionate" figures who believed in an expansive reading of the Constitution, which might not have been what its drafters had in mind but which comported with the "realities of modern life" and accorded federal and state governments "the power to ease America's suffering" and "help people who could not compete in the marketplace on their own."

By contrast, the hard-line Four Horsemen, according to Solomon, believed in dog-eat-dog Social Darwinism (Charles Darwin, of all people, comes in for a real drubbing in this book) and in laissez-faire capitalism, which they deemed to have been "woven" into the Constitution. Roberts might have switched sides, Solomon believes, after reading about a fellow Pennsylvanian, an indebted farmer facing eviction, who seized a shotgun and killed a neighbor when his farm might have been saved by the AAA that Roberts had voted to invalidate.

I won't go into the debatable economic premises on which Solomon's black-and-white categorization rests--such as whether the New Deal's creation of a comprehensive regime of artificially high prices mitigated the Depression or prolonged it; or whether it's better to work for sub-minimum wages or stand in a breadline. Nor will I dwell on what Amity Shlaes points out in The Forgotten Man: that the victims of New Deal legislation were often ethnic small businessmen, such as the Schechters, Joseph Tipaldo, and Leo Nebbia, an Italian-American grocer in upstate New York who ran afoul of the state's dairy-pricing laws by throwing in a free loaf of bread with two quarts of milk to lure customers.

My point is that the Four Horsemen of the Supreme Court were not simply cartoon holdovers from horse-and-buggy days, but jurists who believed that the Constitution's drafters sought to enshrine a comprehensive notion of personal freedom, which is what they believed the drafters meant when they used such words as "liberty," "property," and "due process," and stated explicitly that Congress's powers, regarding interstate commerce and other matters, were limited to those powers enumerated in the Constitution itself.

Liberty, in the view of the Horsemen, included the liberty to make contracts and to enter into economic arrangements that some might find disadvantageous. The idea of substantive due process is no more unwarranted as an interpretation of the Constitution than Roe v. Wade, in which a later generation of justices found a right to nearly unrestricted abortion somewhere in the 14th Amendment.

The Court's four conservatives were not without personal flaws. McReynolds, for example, was a notorious anti-Semite who refused to speak to either Brandeis or Cardozo--although he entertained the Jewish department-store magnate Julius Garfinckel in his home, and voted in favor of the Schechters along with the rest of the justices. Another of the Horsemen, Butler, had been the lone dissenter in Buck v. Bell (1927), which upheld the compulsory sterilization of a mentally retarded woman on the ground that, as Justice Holmes put it, "three generations of imbeciles are enough."

In any event, although Roosevelt lost the battle for a Supreme Court more to his liking, he won the war. By 1941 all four Horsemen were either retired or dead, replaced by FDR with liberals who, in turn, forged a majority that not only upheld expansive government regulation at all levels but overturned dozens of earlier decisions. The Court's insouciance about precedent hurtled Roberts (and Hughes as well) back into the conservative camp. After writing dissent after dissent taking issue with what he believed was the Court's indulgence in a purely results-oriented jurisprudence, and also feeling increasingly isolated--Black, in particular, became a personal enemy--Roberts resigned in 1945.

Ironically, as the Court grew increasingly liberal, substantive due process made a backdoor comeback, although with a different focus. The Supreme Court began to use the 14th Amendment as a vehicle for finding substantive rights, mentioned nowhere in the written Constitution, not only to abortion but to contraceptives, gay sex, and physician-assisted death. The Supreme Court preserved its independence, but to ends that no one during the 1930s could have anticipated.

FDR v. The Constitution may substitute sentiment for legal analysis here and there, but it also provides an informative and highly readable way to learn how this dramatic transformation in constitutional thinking came about.

Charlotte Allen is a contributing editor to the Manhattan Institute's Minding the Campus website.